The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
Discovery Abroad: The Hague Convention
Lawrence W. Newman and Michael Burrows
In the previous chapter we discussed generally methods of obtaining
evidence abroad for use in United States litigation and, in so doing, focused
in large part on the procedures provided in The Hague Convention on
Taking Evidence Abroad in Civil or Commercial Matters (“The Hague
Evidence Convention” or “convention”). The availability of The Hague
Evidence Convention has recently raised the issue of its applicability in
cases in United States courts to which a foreign entity is a party. Many
foreign parties, plaintiffs as well as defendants, have opposed discovery in
accordance with state and federal civil procedure rules, on the ground that
the Convention provides the exclusive means of obtaining discovery from
them. Such a position, if accepted by the courts, could profoundly change
the way in which discovery is conducted in lawsuits involving foreign
parties. Thus far, courts have taken differing views as to the extent to
which The Hague Evidence Convention is exclusive.
If discovery from a foreign party from a country that is a signatory of
the Convention may be conducted through the procedures of the
Convention and not through state or federal rules of civil procedure, there
will be different levels and kinds of discovery from different parties in the
same lawsuit. There will be, to one degree or another, a lack of mutuality of
obligation to provide evidence.
Is such a result mandated by The Hague Evidence Convention?
Function of the Convention
The stated purposes of The Hague Evidence Convention do not shed
much light on its applicability. They are: “to simplify and expedite the use
of letters of request;” “to eliminate restriction on [the] use of diplomatic
and consular officers.” in taking evidence; and “to introduce for the first
time . . . the use of commissioners to take evidence.” Beyond the stated
goals was the belief, at least on the part of the American delegation, that the
Convention would set the groundwork for further liberalization of
international discovery procedures, thereby bringing civil law procedures
closer in line with common law procedures.
The Convention was to be a facilitating body of law—one that would
minimize the difficulties encountered by United States litigants in obtaining
evidence in countries that considered the parties’ evidence taking efforts to
be violations of their “judicial sovereignty.” It was believed that the
Convention would generally enhance international judicial cooperation and
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.